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1 Locke E. Bowman, admission pro hac vice (Illinois Bar # 6184129)

David M. Shapiro, admission pro hac vice (Illinois Bar # 6287364) 2 RODERICK AND SOLANGE MACARTHUR JUSTICE CENTER 3 Northwestern Pritzker School of Law 375 E. Chicago Avenue 4 Chicago, IL 60611 5 312.503.0711 david.shapiro@law.northwestern.edu 6 locke.bowman@law.northwestern.edu 7 Attorneys for Amicus Curiae Roderick and Solange MacArthur Justice Center 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF ARIZONA10 United States of America, No. CR-16-01012-001-PHX-SRB11 Plaintiff, [PROPOSED] AMICUS BRIEF OF RODERICK AND SOLANGE12 v. MACARTHUR JUSTICE CENTER IN OPPOSTION TO ARPAIOS13 Joseph M. Arpaio, MOTION TO VACATE Defendant. CONVICTION1415 This Court should deny Joseph Arpaios motion to vacate his conviction. The pardon16 is invalid and unconstitutional because it has the purpose and effect of eviscerating the17 judicial power to enforce constitutional rights. We show in this brief that the adoption of18 the Bill of Rights and the Reconstruction Amendments altered the original constitutional19 framework by specifying individual rights to be enforced, in James Madisons words, by20 independent tribunals of justice. 1 ANNALS OF CONG. 439 (1789) (Joseph Gales ed.,21 1834). Judicial enforcement of these rights would provide an essential and impenetrable22 bulwark against every assumption of power in the legislative or executive. Id. Whatever23 the limits of the pardon power may have been when the Constitutional Convention finished24 its work, the adoption of the Bill of Rights and the Fourteenth Amendment makes clear that25 the executive power, including the pardon power, cannot be exercised to disable the judicial26 enforcement of constitutional rights.2728 Case 2:16-cr-01012-SRB Document 223-1 Filed 09/11/17 Page 2 of 13

1 Yet eviscerating this Courts power to enforce constitutional rights is precisely what 2 the pardon will do if given effect. Such an outcome would not be limited to this Court. It 3 would, by design, diminish the judicial power of every federal court to enforce 4 constitutional rights. The Arpaio pardon is only the Presidents latest assault on the federal 5 judiciary; a succession of statements by the President show an intent to undermine the 6 constitutional function of the federal courts as a check against fundamental deprivations of 7 liberty. 8 Finally, even if the Court were to find that the pardon is valid and erases the effects 9 of the conviction, the conviction itself should stand. Shortly before the pardon, the White10 House asked Arpaio if he would accept a pardon, and he said that he would. Arpaios lawyer11 then insisted that the President issue the pardon before sentencing, which the President did.12 Arpaio now argues that the conviction should be vacated because he has no opportunity to13 appeal, but he created that scenario by saying he would accept a pardon and by insisting14 that it occur immediately. A party who voluntarily moots a case is not entitled to vacatur.15 If this case is moot, it is because of Arpaios voluntary choices.16 ARGUMENT17 I. The President Cannot Issue Pardons that Have the Purpose and Effect of18 Eviscerating the Judicial Power To Enforce the Bill of Rights and the Reconstruction Amendments.19 The debates at the 1787 Constitutional Convention suggest that the Framers intended20 to grant the President very broad pardon power. See William F. Duker, The Presidents21 Power to Pardon: A Constitutional History, 18 Wm. & Mary L. Rev. 475, 501-06 (1977);22 John Dinan, The Pardon Power and the American State Constitutional Tradition, 35 Polity23 394-95, 404-05 (2003). The Framers voted down a proposed limitation on pardons for24 treason and rejected a requirement that the Senate approve pardons. See Duker, supra, at25 501-506; Dinan, supra, at 394-95, 404-05. The Framers did include one textual limitation26 on the pardon power in Article II: The President may not issue pardons in cases of27 impeachment. U.S. Const., Art. II, 1. The Framers of course had no cause to consider the28

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1 precise issue presented herewhether the pardon power extends to a criminal contempt 2 conviction resulting from a government officials refusal to obey a court order enforcing a 3 constitutional right conferred by later constitutional amendments. 4 Assuming for the sake of argument that the original constitutional framework would 5 have permitted the Arpaio pardon, structural alterations accomplished through the Bill of 6 Rights and the Fourteenth Amendment prohibit it. The Framers came to view the original 7 constitutional structure as incomplete and therefore changed it by enacting the Bill of 8 Rights. Geoffrey P. Miller, Liberty and Constitutional Architecture: The Rights-Structured 9 Paradigm, 16 Harv. J.L. & Pub. Poly 87, 90-91 (1993). These alterations established an10 important limitation on the executive power: The executive power cannot be exercised to11 eviscerate the judicial power to enforce constitutional rights.12 James Madisons address to Congress upon his introduction of the Bill of Rights13 makes it clear that the purpose of the first ten amendments is not only to guarantee certain14 individual rights but to guarantee the judicial power to enforce them. In the United States,15 Madison observed, the people of many states, have thought it necessary to raise barriers16 against power in all forms and departments of government. 1 ANNALS OF CONG. 454.17 [T]he great object of these barriers, which many states had incorporated into their18 constitutions, was to limit and qualify the powers of Government, by excepting out of the19 grant of power those cases in which the Government ought not to act, or to act only in a20 particular mode. They point these exceptions sometimes against the abuse of the executive21 power, sometimes against the legislative . . . . Id. Madison made it clear that the liberties22 protected by the Bill of Rights would be secured by the judiciaryindependent tribunals23 of justice, as he called the courts:24 If [individual rights] are incorporated into the constitution, independent25 tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every26 assumption of power in the legislative or executive; they will be naturally led27 to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.28

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1 Id at 457. The argument Madison makes to Congress is founded on separation of powers. 2 Independent judges would be charged with interpreting and enforcing constitutional rights 3 and thus checking the tendency of the people and the other branches to violate these rights. 4 Douglas Laycock, Individual Liberty and Constitutional Architecture: The Founders 5 Prompt Correction of Their Own Mistake, 16 Harv. J.L. & Pub. Poly 75, 82 (1993). 6 Madison appears to have adopted a view of judicial enforcement that Thomas 7 Jefferson had set forth in previous correspondence. See Randolph J. May, Independent 8 Judicial Review: An Appreciation of Its Origins and Some Contemporary Musings about 9 Its Role Two Hundred Years Later, 2 Geo. Mason Indep. L. Rev. 195, 203 (1993). Jefferson10 had written to Madison on March 15, 1789:11 In the arguments in favor of a declaration of rights, you omit one which has12 great weight with me, the legal check which it puts into the hands of the judiciary. This is a body, which if rendered independent & kept strictly to13 their own department merits great confidence for their learning & integrity.14 In fact what degree of confidence would be too much for a body composed of such men as Wythe, Blair & Pendleton? On characters like these the15 civium ardor prava jubentium would make no impression. 116 Drawing on these sources, constitutional scholars have demonstrated that, while the17 Bill of Rights did not change the text of Article III, it did alter fundamentally the structure18 of government and the power of the federal courts in relation to the other branches by19 providing the federal courts with a concrete set of mandates to enforce against officials of20 the other branches. Thus, the adoption of the Bill of Rights increased judicial power,21 though it did not do so through an amendment to Article III expressly conferring additional22 powers upon the judiciary. Laycock, supra, at 83. Rather, the source of power in the Court23 came from the addition of rights in the people. Id. Similarly, Geoffrey Miller writes:24 125 Letter from Thomas Jefferson to James Madison (March 15, 1789), in The Works of Thomas Jefferson in Twelve Volumes (Paul Leicester Ford ed, Fed. ed. 1904). The phrase26 heat of the populace, written by Jefferson in Latin, is a reference to a Horace verse: The27 just man tenacious of purpose is not to be turned aside by the heat of the populace nor the brow of the threatening tyrant. See Robert Browning, Poems of Robert Browning from the28 Authors Revised Text of 1889 48 (1896).

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1 [T]he Bill of Rights can be seen as rectifying a structural defect in the original Constitution. The original Constitution established two relatively strong 2 branches of the government, the legislature and the executive. It failed to give 3 equal powers to the judiciary. The Bill of Rights increases the powers of the judiciary, consonant with its position of equal dignity within the 4 constitutional structure. 5 Miller, supra, at 91; see also May, supra, at 195-96, 205. 6 After the Civil War, the Fourteenth Amendment further altered the original 7 constitutional structure both by expanding the judicial power and by guaranteeing new 8 rightsincluding equal protectionagainst state actors. A draft of Section 1 of the 9 Fourteenth Amendment did not guarantee any individual rights, and merely granted10 Congress the power to protect them through legislation. CONG. GLOBE, 39th Cong., 1st11 Sess. 1088 (1866). Senator Giles Hotchkiss criticized this draft sharply because it failed to12 secure individual rights as the law of the land:13 I understand the amendment as now proposed by its terms to authorize Congress to establish uniform laws throughout the United States upon the14 subject named, the protection of life, liberty and property. I am unwilling that15 Congress shall have any such power. . . . The object of a Constitution is not only to confer power upon the majority, but also to restrict the power of the16 majority and protect the rights of the minority.17 CONG. GLOBE, 39th Cong., 1st Sess. 1095 (1866). Hotchkiss therefore proposed a18 revisionfrom which the Fourteenth Amendment was ultimately derivedthat provided19 a direct guarantee of Fourteenth Amendment rights. William E. Nelson, The Fourteenth20 Amendment: From Political Principle to Judicial Doctrine 55 (1998); see also Maggie21 McKinley, Plenary No Longer: How the Fourteenth Amendment Amended Congressional22 Jurisdiction-Stripping Power, 63 Stan. L. Rev. 1213, 1229 (2011). Hotchkiss insisted on23 this change because he wanted to be certain that the rights would be enforced by the24 judiciary. Nelson, supra, at 55. Thus, the Fourteenth Amendment, as enacted, guaranteed25 a neutral federal forum in which to enforce these new rights against state malfeasance.26 McKinley, supra, at 1229. The point that the Fourteenth Amendment expanded the27 enforcement power of the federal courts was not lost on the Governor of Alabama, who28

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1 opposed ratification on states rights grounds, and observed that the Amendment would 2 enlarge the judicial powers of the General Government to . . . gigantic dimensions. 2 3 In short, even if the original architecture of the Constitution would have allowed the 4 President to defeat the judicial power to enforce constitutional rights by exercising the 5 pardon power, this much is clear: The President may do so no longer. Subsequent changes 6 in the structure of American government prohibit the Chief Executive from abusing the 7 pardon power to nullify the judicial enforcement of constitutional rights. 8 Ex Parte Grossman, 267 U.S 87 (1925), is not to the contrary. In Grossman, the 9 district court acted pursuant to a prohibition law and ordered the defendant, a county10 official, to stop selling liquor from his place of business. Id. at 107. The official defied the11 injunction, the court convicted him of criminal contempt, and the President pardoned him.12 Id. In Grossman, there was no constitutional dimension to the order that the defendant13 defied, and the Supreme Court rejected the claim that the pardon violated the separation of14 powers or compromised judicial independence. Id. at 119-22. This case is different.15 Arpaios crime consists of flouting orders issued to enforce constitutional rights, and the16 fundamental role of the judiciary in the American structure of government is to protect those17 rights. A pardon that nullifies the punishment for selling alcohol does not defeat the18 enforcement of constitutional rights. This pardon does so, and is therefore invalid.19 II. The Arpaio Pardon Has the Purpose and Effect of Eviscerating the Judicial20 Power To Enforce Constitutional Rights.21 The Presidents pardon eviscerates this Courts enforcement power in the Melendres

22 litigation by endorsing Arpaios refusal to comply with federal court orders. Not only does

23 the pardon purport to eliminate Arpaios criminal conviction, but it also immunizes him for

24 any future violations of orders entered in Melendres (including orders that have not even

25 been entered yet).

1 The text of the pardon is so broad that it purports to allow Arpaio to run for Sheriff 2 again, resume his violation of orders currently in place in Melendresor future orders in 3 Melendres that have not yet been enteredand escape criminal liability for future 4 contempt. 3 This scenario is a very real possibility: Immediately after receiving the pardon, 5 Arpaio refused to rule out the possibility of running for office again. 4 The pardon therefore 6 purports to establish prospective immunity for Arpaio against all criminal liability no matter 7 how many times or how blatantly he flouts orders issued in Melendres. Such a scenario 8 would eviscerate the power of this Court to discharge its constitutional duty to enforce 9 constitutional protections in the Melendres litigation. In fact, the Supreme Court has10 repeatedly held that the President cannot issue pardons for future conduct. Grossman, 4511 S.Ct. at 337 (A pardon can only be granted for a contempt fully completed.); Ex parte12 Garland, 71 U.S. 333, 334 (1866) (stating that the power to pardon an offense may be13 exercised at any time after its commission) (emphasis added).14 The consequence of the pardon, if it is given effect, will not be limited to the15 Melendres litigation. The Presidents statements further demonstrate that the pardon is16 designed to endorse and encourage government officials who flout court orders. The17 President did not say that Arpaio deserved a pardon because he committed a forgivable18 transgression by ignoring this Courts repeated orders. Instead, the President said that19 Arpaio was doing his job by thumbing his nose at this Courts orders:20 The most sacred duty of government is to protect the lives of its citizens, and21 that includes securing our borders, and enforcing our immigration laws.22 By the way, Im just curious. Do the people in this room like Sheriff Joe? So, was Sheriff Joe convicted for doing his job? Thats why...2324 3 The President has furnished Arpaio with a full and unconditional pardon not25 only for his current conviction but for any other offenses under Chapter 21 that might arise, or be charged, in connection with Melendres v. Arpaio. Def.s Mot. Vacate &26 Dismiss Ex. A (emphasis added). 4 Amy B. Wang, Arpaio, 85, hints at return to politics after pardon from Trump,27 Wash. Post (Aug. 26, 2017), https://www.washingtonpost.com/news/post- nation/wp/2017/08/26/arpaio-85-hints-at-return-to-politics-after-pardon-from-28 trump/?utm_term=.1af0da8de782.

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1 He should have had a jury, but you know what? Ill make a prediction. I think hes going to be just fine, OK? 2 But but I wont do it tonight, because I dont want to cause any controversy. 3 Is that OK? All right? 4 But Sheriff Joe can feel good. The people of Arizona know the deadly and heartbreaking consequences of illegal immigration, the lost lives, the drugs, 5 the gangs, the cartels, the crisis of smuggling and trafficking. MS-13 were 6 throwing them out so fast, they never got thrown out of anything like this. We are liberating towns out on Long Island. Were liberating. 5 7 8 The notion that Arpaio was doing his job when he ignored the orders of this Court

9 sends a message that state and local law enforcement officials need not fear federal courts

10 trying to enforce constitutional rightswhen government officials ignore the courts, they

11 are doing their job, and the President will protect them against sanctions. After the pardon,

12 Trump reiterated the message that Arpaio was unfairly prosecuted for doing his job of

14 borders and was unfairly treated by the Obama Administration (presumably because

15 Judge Snow referred the case and the prosecution commenced during that administration). 6

16 The President continually reinforces this messagethe federal courts have no

17 business enforcing constitutional rights against the governmentthrough his public

18 bullying of federal judges. After the Honorable James L. Robart, United States District

19 Judge for the Western District of Washington, temporarily blocked enforcement of the

20 original executive order banning travel to the U.S. from certain Muslim-majority countries,

21 the President tweeted:

The opinion of this so-called judge, which essentially takes law-enforcement22 away from our country, is ridiculous and will be overturned! 723 The next day, he tweeted:24 5 President Trump Ranted For 77 Minutes in Phoenix. Heres What He Said, TIME,25 (Aug. 23, 2017), http://time.com/4912055/donald-trump-phoenix-arizona-transcript/. 6 Remarks by President Trump and President Niintist of Finland in Joint Press26 Conference, White House Office of the Press Secretary (Aug. 28, 2017, 4:20 P.M.), https://www.whitehouse.gov/the-press-office/2017/08/28/remarks-president-trump-and-27 president-niinist%C3%B6-finland-joint-press. 7 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 4, 2017, 5:12 AM),28 https://twitter.com/realDonaldTrump/status/827867311054974976.

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1 Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad! 8 2 After the Ninth Circuit held argument in the same case, President Trump told a crowd 3 of law enforcement officials: 4 I listened to a panel of judges, and Ill comment on that I will not comment 5 on the statements made by certainly one judge. But I have to be honest that 6 if these judges wanted to, in my opinion, help the court in terms of respect for the court, theyd what they should be doing. I mean, its so sad. 9 7 Trump also excoriated the federal judiciary for enforcing constitutional rights in the 8 sanctuary cities litigation. After U.S. District Judge William H. Orrick (N.D. Cal.) ruled 9 against the Administration, President Trump attacked the judiciary on April 25, 2017:10 This San Francisco judges erroneous ruling is a gift to the criminal gang and11 cartel element in our country, empowering the worst kind of human12 trafficking and sex trafficking, and putting thousands of innocent lives at risk . . . This case is yet one more example of egregious overreach by a single,13 unelected district judge. 1014 Trump again attacked the Ninth Circuit following Judge Orricks decision, mistaking15 him for the Ninth Circuit:16 First the Ninth Circuit rules against the ban & now it hits again on sanctuary citiesboth ridiculous rulings. 1117 The message from the Presidents statements is clear: The judiciary should leave law18 enforcement alone, and allow government officials to achieve law and order by violating19 constitutional rights. The President can say what he chooses, but he must not issue pardons20 that eviscerate the role of the federal judiciary in our constitutional structure. Viewed21 together, the breathtaking scope of the pardon, the Presidents statement that Arpaio was2223 8 Donald J. Trump (@realDonaldTrump), Twitter (Feb. 5, 2017, 12:39 PM),24 https://twitter.com/realdonaldtrump/status/828342202174668800?lang=en 9 Remarks by President Trump at MCCA Winter Conference, White House Office of the25 Press Secretary (Feb. 08, 2017), https://www.whitehouse.gov/the-press- office/2017/02/08/remarks-president-trump-mcca-winter-conference.26 10 Statement on Sanctuary Cities Ruling, (Apr. 25, 2017), https://www.whitehouse.gov/the-press-office/2017/04/25/statement-sanctuary-cities-27 ruling. 11 Donald J. Trump (@realDonaldTrump), Twitter (Apr. 26, 2017, 3:20 AM),28 https://twitter.com/realdonaldtrump/status/857177434210304001?lang=en.

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1 just doing his job by flouting court orders, and the Presidents repeated attacks on judges 2 who enforce the Constitution make it clear that the purpose and effect of the Arpaio pardon 3 is to neutralize the judiciarys function as an impenetrable bulwark against every 4 assumption of power in the legislative or executive. 1 ANNALS OF CONG. at 457. 5 III. Even If the Court Concludes that the Pardon Is Valid, The Court Should 6 Not Vacate the Conviction Because Arpaio Voluntarily Mooted the Case. 7 A party is entitled to vacatur of existing orders and judgments only if the party did

1 the case does not say either way), the pardon is not unattributable to the petitioner, nor is 2 the petitioner frustrated by the vagaries of circumstance. U.S. Bancorp Mortg. Co., 513 3 U.S. at 23, 25. The successful pardon petitioner obtains mootness through voluntary 4 action, id. at 24, by initiating a pardon request. But even if Schaffer were consistent with 5 Supreme Court precedent, it does not reach the present circumstances. Most pardon 6 petitioners make a request and then relinquish voluntary control over it; they await a 7 decision that will come far in the future and in which they will have little or no involvement. 8 While Arpaio claims he did not request the pardon, he had the opportunity to decline it right 9 before it issued; instead he accepted the pardon, and even obtained it on his preferred10 schedule. The notion that Arpaio was frustrated by the vagaries of circumstance, id. at 25,11 is ludicrous.12 Judicial precedents . . . are not merely the property of private litigants and should13 stand unless a court concludes that the public interest would be served by a vacatur.14 Moreover, moot cases must be disposed of in the manner most consonant to justice. Id.15 at 391-392 (citation omitted). It is difficult to imagine a case in which vacatur would be less16 consonant to justice and the public interest than it would be here. The President has17 pardoned Arpaio in a manner repugnant to our constitutional order, rewarding him for18 waging war on minority communities and for breaking the law repeatedly and willfully.19 The least this disgraced lawman should suffer is the stigma of conviction. The nation20 deserves for his conviction to stand.21 CONCLUSION22 Amicus requests that the Court hold the pardon invalid and deny the motion to vacate.232425262728